According to the “tender years doctrine” the mother of a child who is normally up to the age of 7 years old is entitled to the children’s custody and care. Once the child is no longer of ‘tender years’, the father became entitled to the child’s custody. With the passage of time, the judges’ opinion substantially changed due to the society’s attitude to the family situation and to the roles played by each parent and a little weight was given to the “tender years doctrine”. There is nothing in the laws of Canada that dictates that mother can perform that parental role labelled as “maternal”. Each case must be decided on its merits, keeping in view the capacities and attitudes of each parent.
Legislation Dealing with the Custody or Access
- 24 of the Children’s Law Reforms Act deals with the custody or access of the child and determines it on the basis of the best interests of the child(ren). There is no reference made in the legislation to the age of the child. However, the best interests of the child’s needs can be dependent on physical, developmental, and emotional factors which essentially are dictated by the child’s age. But the evidence must be produced relating to the child’s developmental needs and parent’s ability to satisfy those needs. There is no statutory presumption regarding parental gender in custody decisions.
Social Science Evidence Supports Both Parents’ Involvement
Research of social scientists suggests that children benefit from the active role of the father in their life. It is in the best interests of the children that children should have a relationship with each parent. There is no doubt that the mother plays a significant role in the child’s life, especially during the ‘tender years’ of a child. However, a father’s role in building children’s self-esteem and helping a child take risks in life can never be ignored. The research statistics show that children who grew up without a father’s involvement in their life develop behavioural issues, confidence issues, academic issues, and a sense of insecurity. It is natural that a child as an infant attaches more to one parent, but the father should always be involved even in a situation where the parents are living separate and apart. However, the parenting schedule depends on each parent’s working schedule. Regardless, social science research advocates the father’s involvement in children’s life without any discrimination on the basis of the child’s gender.
What Factors Do the Courts Consider in a Custody Matter?
The court considers a number of factors to determine a child’s needs and circumstances, some of the factors are given in the following:
- The love, affection and emotional ties between the child and the person claiming custody or access.
- Claiming a person’s involvement in the child’s care and upbringing.
- If the child is grown up, the child’s views and preferences.
- The length of time the child lived in a stable home environment.
- The ability and willingness of each person claiming custody of the child.
- The proposed plan for the care and upbringing of the child.
- Permanence and stability of the claiming person’s family unit.
- The ability of the person claiming custody or access to act as a parent.
- The familial relationship between the child and each person who is part of the proceedings.
Joint Custody is a Default Rule
There is a rebuttable presumption that joint custody is in the best interests of the child(ren). However, in order to rebut this presumption, the court looks at the evidence of each party and determines custody and access on the basis of the factors given above. If there is a conflict between the parents or parties which can trigger negative effects on the children, the court normally avoids making an order for joint custody.
In this changing landscape of child custody disputes, both parents have an equal entitlement to child(ren) custody and the courts determine the custody issue keeping in view the best interests of the children. The “tender years doctrine” is no longer applicable to determine the custody issues in Ontario. Moderately, the court may consider the tender age of the child as one factor to determine the best interests of the child.
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By: Nassar Iqbal